Judgment (Merits) of European Court of Human Rights, April 26, 1979 (case CASE OF THE SUNDAY TIMES v. THE UNITED KINGDOM (No. 1))

Resolution DateApril 26, 1979



(Application no. 6538/74)



26 April 1979

In the Sunday Times case,

The European Court of Human Rights, taking its decision in plenary session in application of Rule 48 of the Rules of Court and composed of the following judges:

             Mr.               G. BALLADORE PALLIERI, President,

             Mr.               G. WIARDA,

             Mr.               H. MOSLER,

             Mr.               M. ZEKIA,

             Mr.               J. CREMONA,

             Mr.               P. O’DONOGHUE,

             Mrs.               H. PEDERSEN

             Mr.               Thór VILHJÁLMSSON,

             Mr.               R. RYSSDAL,

             Mr.               W. GANSHOF VAN DER MEERSCH,

             Sir              Gerald FITZMAURICE,

             Mrs.               D. BINDSCHEDLER-ROBERT,

             Mr.               D. EVRIGENIS,

             Mr.               P.-H. TEITGEN,

             Mr.               G. LAGERGREN,

             Mr.               L. LIESCH,

             Mr.               F. GÖLCÜKLÜ,

             Mr.               F. MATSCHER,

             Mr.               J. PINHEIRO FARINHA,

             Mr.               E. GARCIA DE ENTERRIA,

and also Mr. M.-A. EISSEN, Registrar, and Mr. H. PETZOLD, Deputy Registrar,

Having deliberated in private from 30 November to 2 December 1978 and from 27 to 29 March 1979,

Delivers the following judgment, which was adopted on the last-mentioned date:


  1. The Sunday Times case was referred to the Court by the European Commission of Human Rights ("the Commission"). The case originated in an application against the United Kingdom of Great Britain and Northern Ireland lodged with the Commission on 19 January 1974 under Article 25 (art. 25) of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by the publisher (Times Newspapers Limited), the editor (Mr. Harold Evans) and a group of journalists of the British weekly newspaper The Sunday Times.

  2. The Commission’s request, to which was attached the report provided for under Article 31 (art. 31) of the Convention, was lodged with the registry of the Court on 15 July 1977, within the period of three months laid down by Articles 32 para. 1 and 47 (art. 32-1, art. 47). The request referred to Articles 44 and 48 (art. 44, art. 48) of the Convention and to the declaration made by the United Kingdom recognising the compulsory jurisdiction of the Court (Article 46) (art. 46). The purpose of the Commission’s request is to obtain a decision from the Court as to whether or not the facts of the case disclose a breach by the respondent State of its obligations under Article 10 (art. 10) of the Convention either alone or in conjunction with Article 14 (art. 14+10) or Article 18 (art. 18+10).

  3. The Chamber of seven judges to be constituted included, as ex officio members, Sir Gerald Fitzmaurice, the elected judge of British nationality (Article 43 of the Convention) (art. 43), and Mr G. Balladore Pallieri, the President of the Court (Rule 21 para. 3 (b) of the Rules of Court). On 28 July 1977, the President of the Court drew by lot, in the presence of the Registrar, the names of the five other members, namely Mr. H. Mosler, Mr. M. Zekia, Mr. P. O’Donoghue, Mr. R. Ryssdal and Mr. J. Pinheiro Farinha (Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43).

    Mr. Balladore Pallieri assumed the office of President of the Chamber (Rule 21 para. 5).

  4. The President of the Chamber ascertained, through the Registrar, the views of the Agent of the Government of the United Kingdom ("the Government") and the Delegates of the Commission regarding the procedure to be followed. By Order of 15 September 1977, he decided that the Agent should have until 7 December 1977 to file a memorial and that the Delegates should be entitled to file a memorial in reply within two months from the date of the transmission of the Government’s memorial to them by the Registrar.

    The Government’s memorial was received at the registry on 8 December 1977. On 10 February 1978, the Delegates transmitted to the Court a memorial which had been submitted to them on behalf of the applicants; the Delegates indicated that they did not at that stage wish to express a view of their own or to comment on the applicant’s memorial, but reserved the right to do so at the oral hearings.

  5. After consulting, through the Deputy Registrar, the Agent of the Government and the Delegates of the Commission, the President directed by an Order of 16 March 1978 that the oral proceedings should open on 24 April 1978. By an Order of 20 March 1978, he authorised the Agent to file, not later than 7 April 1978, a supplementary memorial; this was received at the registry on 6 April.

    On 13 April, the Secretary to the Commission transmitted to the Court a letter addressed to him on 10 April by the applicants, together with certain documents enclosed with that letter.

  6. The oral hearings were held in public at the Human Rights Building, Strasbourg, on 24 and 25 April 1978.

    There appeared before the Court:

    - for the Government:

                 Mr. D. ANDERSON, Legal Counsellor,

                                             Foreign and Commonwealth Office,               Agent,

                 The Rt. Hon. Peter ARCHER, M.P., Q.C., Solicitor-General,

                 Mr. N. BRATZA, Barrister-at-Law,               Counsel,

                 Mr. R. RICKS, Treasury Solicitor’s Department,

                 Mr. M. SAUNDERS, Law Officers’ Department,               Advisers;

    - for the Commission:

                 Mr. J. FAWCETT,               Principal Delegate,

                 Mr. J. CUSTERS,

                 Mr. J. FROWEIN,               Delegates,

                 Mr. A. LESTER, Q.C.,

                 Mr. A. WHITAKER, Legal Manager,

                                             Times Newspapers Ltd., assisting the Delegates under              

                                             Rule 29 para. 1, second sentence.

    The Court heard the addresses and submissions of Mr. Archer for the Government and of Mr. Fawcett, Mr. Frowein and Mr. Lester for the Commission, as well as Mr. Lester’s replies to questions put by certain judges. During the course of the hearing, the Commission made available to the Court other documents which it had received from the applicants.

  7. The Chamber deliberated in private from 25 to 27 April.

    At a meeting held in private on 27 October 1978 in Strasbourg, the Chamber decided under Rule 48 to relinquish jurisdiction forthwith in favour of the plenary Court, "considering that the case raise[d] serious questions affecting the interpretation of the Convention ...".

    Having obtained, through the Registrar, the agreement of the Agent of the Government and the concurring opinion of the Delegates of the Commission, the Court decided on 30 November that the proceedings would continue without any further oral hearings (Rule 26).



  8. Between 1958 and 1961 Distillers Company (Biochemicals) Limited ("Distillers") manufactured and marketed under licence in the United Kingdom drugs containing an ingredient initially developed in the Federal Republic of Germany and known as thalidomide. The drugs were prescribed as sedatives for, in particular, expectant mothers. In 1961 a number of women who had taken the drugs during pregnancy gave birth to children suffering from severe deformities; in the course of time there were some 450 such births in all. Distillers withdrew all drugs containing thalidomide from the British market in November of the same year.

  9. Writs against Distillers were issued, between 1962 and 1966, by the parents of seventy of the deformed children on their own and on their children’s behalf. They contended that the cause of the deformities was the effect on the foetus of thalidomide administered to the mother during pregnancy, alleged that Distillers had been negligent in the production, manufacture and marketing of the drugs and claimed damages. Distillers denied negligence and put in issue the legal basis of the claims. A number of actions were also brought in respect of persons alleged to have suffered peripheral neuritis as a result of use of the drugs.

    Of the seventy actions by parents, sixty-five were settled in 1968 following negotiations between the parties’ legal advisers. In sixty-two of the cases, the children were still alive and the settlement therefore required court approval which was obtained. The basis of the settlement was that each plaintiff, provided he withdrew his allegation of negligence, should receive from Distillers a lump sum equal to 40 per cent of the amount he would have recovered had his action wholly succeeded. Further proceedings in the High Court in 1969 dealt with the assessment of damages in the cases settled on the above-mentioned basis and, in the event, Distillers paid out some £ 1,000,000 in respect of fifty-eight cases. Two cases were otherwise disposed of and the amount of damages in the remaining two was still under negotiation in July 1973.

  10. The 1968 settlement did not cover five of the original seventy actions, since the writs in those five cases had not been issued within the three-year limitation period prescribed by English law. Leave to issue writs out of time was subsequently granted ex parte by the court both in those five cases and in respect of a further two hundred and sixty-one claims by the parents or guardians of other deformed children. A further one hundred and twenty-three claims had also been notified to Distillers in correspondence but formal proceedings were not started by agreement between the parties. Thus, by 1971, three hundred and eighty-nine claims in all were pending against Distillers. Apart from a statement of claim in one case and a defence delivered in 1969, no further steps were taken in those actions where writs had been issued. Distillers had announced in February 1968...

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